FLP v Secretary, Department of Communities and Justice; FLP v Secretary, Department of Communities and Justice; FLQ v Department of Communities and Justice

[2023] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FLP v Secretary, Department of Communities and Justice; FLP v Secretary, Department of Communities and Justice; FLQ v Department of Communities and Justice [2023] NSWCATAD 23

Hearing dates:

On the papers

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member
P Foreman, General member

Decision:

(1) A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

(2)   Secretary, Department of Communities and Justice, is to pay the costs of the proceedings of each of the applicants, for the period from 24 October 2022, up to and including 7 November 2022, as agreed or assessed.

Catchwords:

COSTS - ADMINISTRATIVE REVIEW – Authorised carers - special circumstances - costs where proceedings settled.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons Care and Protection Regulations 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294

Kiama Council v Grant [2006] NSWLEC 96

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681

ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548

P v NSW Trustee and Guardian P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Qin [1997] HCA 6

Category:

Principal judgment

Parties:

2022/00189394:
FLP (Applicant)
Secretary, Department of Communities and Justice (Respondent)

2022/00222746:
FLP (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
Creating Links (NSW) Ltd (Second Respondent)

2022/00235886:
FLQ (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
Creating Links (NSW) Ltd (Second Respondent)

Representation:

2022/00189394:
Counsel
L Fermanis (Applicant)
V Hartstein (Respondent)

Solicitors:
Hosking & Gosling Legal (Applicant)
Crown Solicitor (Respondent)

2022/00222746:
Counsel:
L Fermanis (Applicant)
V Hartstein (First Respondent)

Solicitors:
Hosking & Gosling Legal (Applicant)
Crown Solicitor (First Respondent)
Care Legal (Second Respondent)

2022/00235886:
Counsel:
L Goodchild (Applicant)
V Hartstein (First Respondent)

Solicitors:
NLS Law (Applicant)
Crown Solicitor (First Respondent)
Care Legal (Second Respondent)

File Number(s):

2022/00189394, 2022/00222746 and 2022/00235886

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013, publication or broadcast of the applicants and children mentioned or involved in these proceedings is prohibited.
Pseudonyms have been used for the parties.

Reasons for Decision

1. The substantive application was for review of an administratively reviewable decision made under the Children and Young Persons (Care and Protection) Act 1998 (NSW), removing daily care and control of the children, from the applicants. On 7 November 2022, the parties came to an agreement to settle all three proceedings. In effect, the children were to be returned to the care and control of the applicants, subject to undertakings. We made consent orders in that regard.

2. The applicants sought the costs of the proceedings. In that regard, we made directions for the parties to provide material in relation to the costs applications.

3. Having considered that material, we have decided that there are special circumstances which warrant the making of an order for costs in these proceedings. These reasons for decision deal with all three related proceedings.

Background

4. FLP and FLQ are authorised carers with responsibility for the daily care and control, for three children under the Children and Young Persons (Care and Protection) Act. Creating Links (NSW) Ltd is the body with case management for the subject children. The Minister, presently the Minister for Families and Communities, Disability Services, has parental responsibility for the three children. We have presumed that the Secretary, Department of Communities and Justice (DCJ), has delegated authority for the Minister, no party has suggested otherwise.

5. The applicants had been married and subsequently divorced. Prior to 29 April 2022, FLP was the primary carer for two of the children and FLQ provided respite and short-term care and was generally involved in the day-to-day care of those two children. FLQ was the primary carer for the third child, with a plan for that child to transition back to full-time care of FLP.

6. FLP was first authorised as a carer on 8 November 2012 and FLQ was also authorised at around the same time.

7. Two of the children were aged 2 and one was aged 3 on placement with the applicants. The children are now aged 9, 10 and 11 years.

8. On 10 March 2022, DCJ received a risk of significant harm ('ROSH') report, which alleged that one of the children felt threatened by FLP, because she hits him. The child reportedly stated that in February 2022, FLP got him in the corner and hit him in the stomach and face with her fists.

9. On 7 April 2022, DCJ undertook a Pre-Assessment Consultation which involved numerous staff from both DCJ and Creating Links.

10. On or about 29 April 2022, the children were removed from the care of the applicants.

11. On 28 June 2022, the applicants lodged an application in the Tribunal for administrative review of the decision to remove the children from their care. They also filed applications for interim orders for the return of the children

12. On 14 July 2022, the application for administrative review lodged by the applicants were listed and directions were made. On 20 July 2022, the proceedings were again listed for hearing of the interim applications. FLP did not press for an interim order as the children had been returned to her care by that stage. However, FLQ pressed his application for an order for return of responsibility for daily care and control to him in the shared caring arrangement that had existed prior to the children being removed on or about 29 April 2022.

13. The proceedings were adjourned for hearing of FLQ’s interim application on 25 August 2022.

14. In the intervening period, on 22 July 2022, it was again decided that the children should be removed from FLP’s care (second decision). The children were subsequently removed from FLP’s care, and the children were placed in an Alternative Care Arrangement

15. On 25 July 2022, the Tribunal was informed that the children had been removed from FLP’s care and on 27 July 2022, the proceedings were relisted before the Tribunal for hearing in relation to interim applications for the return of the children. On 29 July 2022, an order was made by the Tribunal dismissing the interim applications filed by the applicants.

16. The applicants have made three applications and the proceedings have been allocated matter numbers 2022/00189394, 2022/0222746 and 2022/00235886. The proceedings were dealt with together and were heard by us on 1, 2, 3 and 7 November 2022. At the commencement of the hearing on 7 November 2022, when cross examination was scheduled to commence for the witnesses for DCJ, the legal representative for DCJ indicated to the Tribunal that DCJ was considering whether the proceedings could be settled. Following discussions between the parties, the proceedings were settled, and orders were made consistent with that agreement. The only remaining issue was the applicants’ application for costs.

Dispensing with the hearing

17. On 7 November 2022, the parties were ordered to file and serve submissions in relation to any costs applications. The parties were also provided with the opportunity to make submissions in relation to dispensing with the hearing, as is required by s 50 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

18. None of the parties’ sought an oral hearing on the issue of costs. DCJ stated in its further submissions filed on 21 December 2022, that the Secretary sought that an oral hearing in relation to the costs applications be dispensed with, on the basis that all arguments had been included in written submission.

19. The parties have had an opportunity to make submissions in relation to a hearing on costs. We are satisfied that it is appropriate to deal with the costs applications on the papers, as a hearing would amount to further unnecessary costs to the parties. Accordingly, we have made an order under s 50(1)(c) of the NCAT Act dispensing with a hearing.

Special Circumstances

20. Section 60 (1) of the NCAT Act, requires that each party bears their own costs. However, pursuant to s 60 (2) of the NCAT Act, a cost order can be made if "special circumstances" are established.

21. Clause 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) states that, despite section 60 of the NCAT Act, the Tribunal may award costs in proceedings in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. There was no amount in dispute in this application and no party disputes that s 60(2) is the applicable costs regime that applies to these proceedings. We are satisfied that the applicants must establish special circumstances to warrant a costs order being made in their favour.

22. Pursuant to s 60(3) of the NCAT Act, in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

23. This is a matter where there was no final determination by the Tribunal of the matter on the merits. The orders were made by consent of the parties. In Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia Ex Parte Lai Qin [1997] HCA 6, (where the Court was dealing with the common law costs regime), McHugh J described circumstances in which the discretion to make a costs order may be exercised in the absence of a hearing on the merits. One circumstance described by McHugh J is where one of the parties has acted so unreasonably that the other party should be awarded costs [at 624]. The other circumstance described is where a judge feels confident that although both parties have acted reasonably, “one party was almost certain to have succeeded if the matter had been fully tried” [at 625].

24. The issue of costs in cases where the substantive issue in dispute has been resolved without a hearing on the merits was also considered by Burchett J in 55 In ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, who stated, at 553 [6]:

:“…it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. …”

25. Both applicants seek costs, against DCJ, in fixed amounts, for legal fees incurred. FLQ seeks a fixed cost order for $57,895.76 for legal fees incurred. FLP seeks a fixed cost order for $58,737 for legal fees incurred. In addition, FLP sought witness fees for Dr Gerard Webster, a treating psychologist for one of the children in the amount of $1,400.

Consideration

26. For the reasons that follow, we find that there are special circumstances which warrant the making of a costs order in these proceedings. However, we are of the view that costs should be awarded from 24 October 2022 and not on a fixed costs basis.

Whether DCJ has conducted the proceedings in a way that unnecessarily disadvantaged the applicants.

27. Both FLP and FLQ submit that DCJ failed to comply with its obligations under section 58 of the Administrative Decisions Review Act 1997 (NSW) because DCJ had in its possession an Alternate Assessment dated 14 January 2019 and did not file that document as part of the s 58 documents in the proceedings.

28. The Alternate Assessment dated 14 January 2019 was a document created by DCJ that was only discovered under summons material produced by Challenge Community Services (the previous case manager).

29. The information in the Alternate Assessment referred to events regarding inappropriate touching and physical contact with the children in October 2015, September 2016, August 2017 and September 2018.

30. The outcome of the Alternate Assessment was that FACS (as DCJ was then known):

1. Did not plan on taking any legal action in respect of these matters

2. Ceased protective action given the situation was monitored by Challenge

3. Concluded the children were not in need of further care and protection at the time of the Alternate Assessment in circumstances where the matter was case managed by Challenge.

31. FLQ submits that the recommendations made in the Alternate Assessment were significant in the context of these current proceedings. FLQ submits that it cannot be suggested that the failure to disclose the Alternate Assessment was a mere oversight, as the Alternate Assessment was significant evidence that should have been disclosed. The document provided significant information as to the historical allegations that DCJ relied upon in the current proceedings and which they spent considerable time cross-examining the applicants and Dr Webster about at the hearing.

32. FLQ submits that given the Alternate Assessment was not produced to the Tribunal or the parties, there has been unreasonable time taken to complete the cross examination by DCJ as the case put by DCJ contradicts the findings in this assessment which formed a large portion of and unnecessary cross examination of the applicants’ and Dr Webster. In particular, the oral evidence of the applicants and Dr Webster tends to establish that the matters canvassed in the recommendations of the Alternate Assessment dated 14 January 2019 were not complied with.

33. FLQ also submits that DCJ spent a considerable amount of hearing time on factual matters already considered and resolved in the Alternate Assessment and if the report had been disclosed, DCJ had no basis to cross-examine both applicants in relation to those matters and the applicants were deprived of the opportunity to object to any line of questioning which traversed the factual matters that were the subject of the Alternate Assessment at the time of the applicants’ cross examination of Dr Webster and Ms Reid, treating professionals for two of the children. FLQ submits that if the Alternate Assessment dated 14 January 2019 had been filed and served as part of the s58 Bundle of documents as it ought to have been, this would have likely lessened the time of the hearing and may have resulted in a settlement agreement between the parties being reached earlier.

34. FLP acknowledges that the Alternate Assessment was available in the summons material produced by Challenge. FLP submits that DCJ spent a considerable amount of hearing time canvassing factual matters already considered and resolved in the Alternate Assessment. FLP. like FLQ, also submits that given the nature and gravity of the contents of the Alternate Assessment, it cannot be suggested that the failure to disclose was a mere oversight.

35. DCJ submits that it was an oversight on DCJ’s part and acknowledges the document itself was not in the documents produced under s 58 of the ADR Act. However, they say, that the Alternate Assessment was referred to in the affidavit of Kathryn Bova, an employee of DCJ and she summarises the report’s conclusions. ROSH report’s which formed the basis of the investigation of the Alternate Assessment, were included in the s.58 documents and referred to in Ms Bova's affidavit. DCJ submits that the inclusion of the Alternate Assessment in the s 58 documents would have added nothing to the evidence before the Tribunal, and there was no disadvantage to the applicants because the conclusions and the material they were based on were included in the s58 documents or Kathryn Bova's affidavit.

36. We accept that the failure by DCJ to include the Alternate Assessment was due to an oversight. However, the Alternate Assessment report dealt with many of the matters that were put to the applicants and witnesses regarding the events in relation to inappropriate touching and physical contact with the children in October 2015, September 2016, August 2017 and September 2018. The fact that the report was referred to in the affidavit of Ms Bova and the ROSH reports were also included in that affidavit, is not the same as having disclosed the report. We accept that had the report been produced, it could have reduced the time required to cross examine the applicants and their witnesses. However, we do not find that it would have made it unnecessary to cross examine the witnesses at all. The contents of the reports and allegations were still open to be tested by DCJ.

The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law

37. FLQ submits that the applicants had strong applications that were supported with evidence. They say that the evidence of Dr Webster confirmed that the children should be with the applicants. When asked whether Dr Webster was surprised that one of the children’s behaviours had escalated since he was removed, Dr Webster said that he had predicted that it would. Dr Webster then went on to give the following evidence about the second decision:

1. There has been a catastrophic impact on the child, psychologically.

2. The decision was not consistent with Dr Webster’s assessment or recommendation in his report

3. There was no consultation with Dr Webster about what was in the child’s best interests.

4. Each child had deteriorated, and the children had never behaved to such an extent, Their behaviour had resulted in disrupting neighbours and eviction by the landlord after they had punched holes in the house.

5. The child that Dr Webster was treating was very much on the path to juvenile justice and he was concerned about the frequency of aggressive and harmful behaviours.

6. The siblings were operating as a ‘chaotic system’ with the two boys having external behaviours and girl having internalised behaviours

7. The risk of harm is high in the alternative placement, and it was not a good placement which is well‐established in research

8. The children’s developmental and psychological safety needs were not met.

38. Dr Webster stated that FLP is the most sophisticated carer that he has worked with and that she was very psychologically minded and thinks of what is in the best interests of the children, citing as an example, her suggestion for family therapy. Dr Webster said that FLP is very collaborative and engaging and is ‘incredibly impressive as a foster carer’.

38. In relation to FLQ, Dr Webster stated that he had a strong and positive evaluation of FLQ’s parenting capacity as well. Dr Webster said that the child he was treating had settled in his behaviour while in FLQ’s care. Dr Webster said that FLQ was very well educated and brings a professionalism which is very containing for the child.

39. FLQ submits that based on the evidence of Dr Webster and the recommendation of the Alternate Assessment dated 14 January 2019 the claims of DCJ were untenable.

40. DCJ submits they have a duty to make decisions which protect children from harm (Child Safety Standards, Standard 3). DCJ submits they had a strong case that the applicants caused harm to the children. DCJ also refers the submissions of the separate representative of the children that the Tribunal would find that FLP and FLQ have on occasion, used physical discipline against the children. However, we note the views of the separate representative was that risk could be managed with a Safety Plan which would involve ongoing monitoring of the placement and further training of the applicants. DCJ made submissions that Dr Webster was not unreservedly in favour of returning the children to the applicants and that he had qualified what he had said as follows:

1. FLP was best placed to have the children returned to her care, assuming FLP does not present an unacceptable risk.

2. If the relevant child perceived FLP punched him in the stomach and slapped him on the face, the issue does not go away.

3. In early 2022 the child he was treating was beginning to disclose concerns he had about FLQ's behaviour. Once he decided he was going back he could raise issues he had about FLQ.

4. The risk of harm to the children of remaining where they were was greater than the risk of harm in being with FLP, however inappropriate she was.

5. The applicants provided a "good enough" child-rearing environment.

42. In our observation, the views of Dr Webster regarding FLP and FLQ were, when considered overall, overwhelmingly positive. As Dr Webster was a treating professional for one of the children, it was always open to DCJ to seek the relevant information from Dr Webster directly and DCJ did not need to wait for cross examination to ask questions of or clarify information provided by Dr Webster.

The nature and complexity of the proceedings,

43. DCJ agrees that these proceedings were complex. DCJ submit that on the one hand, the allegation was that the children had suffered physical coercion and violence at the hands of their careers, contrary to reg 41 of the Children and Young Persons Care and Protection Regulations 2012 (NSW) and to the Code of Conduct the applicants had signed. On the other hand, the children's alternative placement had proved harmful to them.

44. DCJ emphasises that the matter was only settled based on the inclusion of strong undertakings in the final orders which would manage the risks to the children once returned to the care of the applicants. The applicants agreed to the undertakings.

45. DCJ also refers to the separate representative’s submissions that the children should be returned to the care of the applicants but only with a detailed safety plan that involved monitoring and further relevant training of the applicants and appropriate respite for the applicants and individual counselling.

46. We find the proceedings were complex both in law and in fact and the nature of the proceedings is particularly sensitive and important as it involves the care of children and serious allegations made against the carers.

Whether a party has refused or failed to comply with the duty imposed by section 36.

47. Section 36 of the NCAT Act sets out the Guiding principles to be applied to practice and procedure of the Tribunal as follows:

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

48. FLQ submits that DCJ did not facilitate a just, quick and cheap resolution of the proceedings. FLQ submits that DCJ had an opportunity to settle the matter prior to the hearing of the matter.

49. On 16 August 2022, FLQ sought the children to be returned to his care by way of letter to DCJ as he had been notified that there had been no decision made by DCJ as to the removal of the children from his daily care and control. DCJ maintained that position throughout the proceedings, but did not consent to any orders for the return the children to the applicants until after 3 days of hearing of the evidence and just prior to the DCJ witness being required to be cross examined.

50. FLQ submits that it was open to DCJ to settle the proceedings on 16 August 2022 and return the children to FLQ.

51. FLP submits that on 20 August 2022, the applicant sent a lengthy letter to DCJ inviting the DCJ to reconsider its position. The applicant stated:

It is particularly concerning that the decisions by DCJ to remove the children are based upon a report and child interview in which FLP is alleged to have assaulted the child [..], when subsequently […] has made clear that this allegation is not true and my client asserts that the incident simply did not occur.

We further draw your attention to the evidence of Dr Webster in particular, Ms Reid and Ms Thomas. We also ask you to give due regard to the children's current behaviours and circumstances. The children continue to express to [FLP] that they are miserable in their current circumstances and wish to return home.

It is suggested that there is compelling evidence that the children ought to be

returned to our client as a matter of urgency given the evidence as it stands. We note that Creating Links ('CL') reached this conclusion and returned the children to our client before DCJ's further intervention.

Our client will incur considerable legal costs in pursuing this application and in this matter we are instructed to seek a costs order should her application be successful.

52. We are not of the view that at that stage of the proceedings, DCJ’s non-acceptance of the settlement offer amounted to a failure to comply with the duty imposed by section 36 of the NCAT Act. At that time, the filing of the parties, documents had not yet been completed and the interim application for the return of the children to the care and control of either of the applicant’s had been dismissed.

Any other matter that the Tribunal considers relevant.

53. FLP submits that a circumstance which may justify an order for costs where there has been no hearing on the merits, is where one party capitulates or surrenders during a proceeding. In those circumstances, the capitulating or surrendering party will usually be required to pay the other party's costs.

54. Preston CJ in Kiama Council v Grant [2006] NSWLEC 96 at [80] summarised the principles that emerge from cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:

The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:

(a) where one party effectively surrenders to the other party by:

(i) discontinuing without the consent of the other party; or

(ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;

the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and

(b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:

(i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or

(ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.

55. FLP submits that it was inevitable that the applicant would have succeeded if the matter had been fully tried so that the applicant should obtain her costs of the action.

56. FLP also refers to the judgment of Basten JA the Court of Appeal decision of in Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681, where His Honour stated at [8] and [9]:

8. Secondly, although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.

9. Thirdly, if contrary to the views set out above, it was appropriate to investigate whether the applicants or the respondent had been unreasonable, either in their conduct prior to the proceedings, or in their conduct of the proceedings, the approach adopted was untenable. Thus, regard was had to the motives of the respondent in commencing proceedings, but no account was taken of the motives of the applicants in capitulating. Further, once it is clear that there is a real dispute as to a significant fact in issue in the proceedings, it is inappropriate to determine that matter, other than in making an interlocutory ruling, by accepting one party's case without permitting the other party an opportunity to challenge the opposing party's witnesses.

57. FLP submits that these proceedings are distinguishable from Nichols in that the Tribunal did hear full argument on the merits before settlement took place. This is a case in which it was still possible, and indeed appropriate, to discern a ‘clear winner’.

58. We agree with FLP’s submissions that the evidence before the Tribunal established:

• An older child (not the subject of the proceedings) was involved in an altercation between the applicants

• Whilst one of the children had posed a sexual risk, the applicants had taken steps, including successful therapeutic intervention, to address the risk.

• Until the point of removal by DCJ, the subject children were stable in their placement with the applicants. In addition to Dr Webster’s evidence, Ms Anna Reid, a treating psychologist in relation to another of the children, was positive about the efforts and works undertaken by FLP.

• FLP's work with those professionals and the children’s successful intervention was not the subject of any serious challenge.

• The evidence led by DCJ, and the oral evidence given at the hearing, established that the subject children’s behaviours had significantly regressed post removal. The removal had been devastating and destabilizing for the subject children and this view was supported by Dr Webster and Ms Reid.

59. DCJ submits that the resolution of the proceedings on the final day of the hearing did not amount to a capitulation. DCJ required substantial undertakings from both applicants, and it took a significant part of the day to negotiate the settlement. The settlement was an agreement reached by compromise on all sides.

60. However, from the outset of the hearing it was open to the parties to negotiate, including with the substantial undertakings. It is noted that at the outset of the hearing on the first day, we encouraged the parties, that if it was appropriate, they should have settlement discussions and that we would allow time for those discussion. We repeated that offer later in the hearing after it was raised by legal Counsel for FLQ.

61. We agree with DCJ that we did not hear the evidence in full as is submitted by FLP. As stated previously, there remained still to be heard, the cross examination of DCJ’s witnesses and closing submissions. In those circumstances, it is not possible for us to find that it was inevitable that the applicants would have succeeded if the matter had proceeded to finality. We did not hear full argument on the merits before the matter was finalised. However, the fact that the proceedings did settle, and based on the strength of the evidence that was put before us, we are of the view that their was a strong likelihood that the Tribunal would have found that the correct and preferable decisions was to return the children to the daily care and control of the applicants.

Conclusion

62. In P v NSW Trustee and Guardian P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676, the Supreme Court considered a costs application in circumstances where an appeal had been made by the plaintiff from orders of the Guardianship Division of the NSW Civil and Administrative Tribunal for the appointment of the NSW Trustee as financial manager. The appellant was the protected person for whom the order had been made. The cost’s applicant was the appellant’s son, who was the second respondent in the proceedings. We note the comments made by Lindsay J at [9] - [10]:

9 The “ordinary” rule in protective proceedings (explained by Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640) is that the Court may exercise its discretion as to costs (for which section 98 of the Civil Procedure Act 2005 provides) not by reference to the rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event, but by reference to “what, in all the circumstances, seems proper”.

10 This approach gives due recognition to the following factors, amongst others:

(a) the protective jurisdiction of the Court is generally governed by the “welfare principle” (that the welfare and interests of each person in need of protection, here the plaintiff, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.

(b) the Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made.

63. These proceedings involved children in care and the relevant legislation is also governed by welfare principles. Section 8 of the Children and Young Persons (Care and Protection) Act sets out the objects of the Act as:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

64. We are also alive to the possibility that an agency, who should be concerned to act to protect children, should not be deterred from acting regarding children’s safety, if they are concerned that they may be bound to submit to a costs order on an application for review of a decision by the Tribunal. An award of costs should not act as a deterrent for future applications for the care and protection of the children. However, we are also mindful that every cost application must be considered on its own merits.

65. We are satisfied that the following matters amount to special circumstances, in the circumstances of these proceedings, and warrant the making of a costs order in favour of the applicants from 24 October 2023.

1. The applicants in this case, who are carers of children, have gone to considerable expense in bringing these review proceedings. As stated above, these were complex proceedings in law and in fact and considerable material was filed. The proceedings involved serious allegations against the applicants. In those circumstances, we accept that the nature and complexity of the proceedings warranted the applicants seeking legal representation, especially in circumstances where:

• both respondents were legally represented

• serious allegations were made against the applicants

• and the nature of the proceedings was for the return of children who had been in their care of the applicants for most of their life.

• FLP had to incur the costs of Dr Webster, so that he could be made available for cross examination.

2. The final evidence filed by the applicants, was filed by FLQ on 24 October 2022. We are satisfied that by that stage DCJ had ample opportunity to review the evidence in its totality and make relevant enquiries and should have been on notice of the strengths of the applicants’ cases. We are satisfied that the evidence by that stage weighed heavily in favour of the applicants.

Fixed Costs

66. In the Court of Appeal decision in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to a fixed costs order at follows [12] – [18]:

[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002) NSWCA 213 at 742-723 (21)-(22); Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123.

[13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamad v New South Wales (2011] NSWCA 375 at (818) per

Beazley JA (Giles and Whealy JJA agreeing).

[14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; (1999) FCA 673 at 5 (16); Penson v Titan National Ply Ltd (No 3) (2015] NSWCA 121 at [7].

[15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamad v New South Wales at (814].

...

[18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite.

67. The applicants have not provided any supporting evidence of the costs incurred. There is no evidence before us that formal assessment would add to the costs burden on the applicants, or that the costs will become disproportionate if they are referred for assessment.

68. We are not satisfied that from that material we can determine an appropriate sum of the costs.

69. Accordingly, we make the costs order on that basis that they are agreed or assessed.

Orders

70. We make the following orders:

1. A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. Secretary, Department of Communities and Justice, is to pay the costs of the proceedings of each of the applicants, for the period from 24 October 2022, up to and including 7 November 2022, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 January 2023